Legal grounds for brand protection
There are five legal grounds brand protection: trademark, industrial design, invention, copyright, fair competition. Let's consider them in more detail.
A trademark and service mark (hereinafter referred to as a trademark) are designations used to individualize goods, performed works or rendered services (hereinafter - goods) of legal entities or individuals. That is, a trademark is necessary in order for a consumer to be able to determine who produces a product or service, the producer (seller) denotes that the product or service belongs to him. No one can use the trademark protected in the United States without the permission of the right holder. The practice of protecting the brand as a trademark is quite widespread, but it is very controversial at the moment. Advantages of trademark protection are the exclusivity of rights, which is confirmed by the Patent Office of the United States; Examination by this agency, which does not provide an opportunity to obtain rights for one brand to several persons; the possibility of obtaining a patent umbrella under the brand of the company (for 45 groups); protection against counterfeiting, including from a similar to the degree of confusion ( Adidas - Abibas ).
The shortage of brand protection as a trademark is a long registration procedure (at least six months).
An industrial design is an artistic design solution of a product or handicraft-craft industry, which determines its appearance, i.e. the exclusive right to design. In practice, very often the protection of the packaging of the goods occurs, especially if it is presented in the original form (for example, a bottle of Coca-Cola ).
The advantages of brand protection as an industrial design is the grant of a patent issued by the Patent Office of the United States; protection of several design variations; Examination passes faster than examination of a trademark.
The disadvantages of brand protection as an industrial design is the complexity of making an application because of the specificity of the terminology, all the more so because in the Law it is considered a violation to use all the essential features of an industrial design, which must be clearly described in the application. All this leads to a weak protection against forgery.
Legal protection is provided by the invention only if it is new, has an inventive level and is industrially applicable. In this case, the technical side of the goods, special ways of supplying information about the product (for example, the original advertising device) can be protected by a patent.
The advantages of brand protection as an invention include a long term of protection (20 years) and the granting of a patent.
The disadvantages of brand protection as an invention include the complexity of making an application, the high cost and the presence of a high inventive level.
Copyright spreads to works of science, literature and art that are the result of creative activity, regardless of the purpose and dignity of the work, as well as the way it is expressed.
The benefits of protecting the brand as copyright include the occurrence automatically after the creation of the work, that is, registration in state bodies is not required; duration of protection - throughout the life of the author and 50 years after his death.
The defenses of brand protection as copyright include form protection, not content; protection of the form only from direct copying (in contrast to the "umbrella" in the trademark).
Unfair competition is any actions of economic entities aimed at acquiring advantages in entrepreneurial activity that contradict the provisions of the current legislation, the customs of business turnover, the requirements of good faith, reasonableness and fairness and can cause or cause losses to other economic entities-competitors or damage their business reputation. This mode, first of all, operates when the brand is not protected by a trademark, but is already known and forged.
The advantages of protecting the brand as unfair competition include the absence of the need for a patent or trademark; the actions of a competitor can be recognized as an act of unfair competition.
The shortcomings of brand protection as unfair competition include a long and complex process in the Antimonopoly Committee, the possibility of appealing in an arbitration court, as well as the difficulty of implementing the decision of the Antimonopoly Committee.
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